DHS Investigators Argue The Border Warrant Exception Covers Searches Performed Miles From The Border

from the DHS:-everywhere-you-want-to-be dept

The DHS is back in court, arguing for its “right” to expand border searches to cover the entire country. The case in which Homeland Security investigators are making this dubious claim involves the placement of a GPS device on a truck crossing the Canadian border… which FBI agents then tracked all the way down into California.

The “bust” carried out in Southern California turned up plenty of legal frozen pastries and four bags of a cocaine-like substances known as regular-ass sugar. The FBI posited this was a trial run for actual drugs and chose to take its collected evidence to court, where it was promptly thrown out by the presiding judge. As the judge saw it, tracking a vehicle inland requires a warrant. The “border exception” to warrant requirements can’t be expanded to cover searches performed miles from the 100-mile “Constitution-free zone.”

The government maintains the judge’s opinion is wrong, according to this report by Cyrus Farivar of Ars Technica.

A top Homeland Security Investigations official has told a federal court that it remains the agency’s policy that officers can install a GPS tracking device on cars entering the United States “without a warrant or individualized suspicion” for up to 48 hours.

There is no such time limit, HSI Assistant Director Matthew C. Allen also told the court, for putting such trackers on “airplane, commercial vehicles, and semi-tractor trailers, which has a significantly reduced expectation of privacy in the location of their vehicles.”

The argument, laid out very briefly in the government’s filing [PDF], is basically that DHS policy says this sort of thing is OK, so there’s no need to worry about Constitutional protections or precedential Supreme Court decisions.

HSI exercises its border-search authority for the purpose of protecting national security and revenue of the United States. Pursuant to this authority, it is policy that a customs officer may install a GPS tracking device on a vehicle at the United States border without a warrant or individualized suspicion. HSI limits warrantless GPS monitoring to 48 hours, with the exception of airplanes, commercial vehicles, and semi-tractor trailers, which have a significantly reduced expectation of privacy in the location of their vehicles. It is HSI’s position that such policy is consistent with the U.S. Supreme Court’s decisions in United States v. Jones, 565 U.S. 400 (2012), and United States v. Flores-Montana, 541 U.S. 149 (2004).

It may be HSI’s position but it’s not the judge’s position, nor is it a Constitutionally-sound position. The judge has already determined this inland tracking required a warrant, so simply restating DHS policy isn’t going to reverse this decision. The government will probably get a chance to expound on this argument at a later date, but for now, all it’s offering is a conclusory reiteration of internal policy. That’s not even close to the same thing as an argument supported by caselaw and precedential decisions.

But for the rest of us, the DHS is at least clarifying its stance on the border warrant exception: it can track you anywhere you travel in the country, so long as a) it’s within 48 hours of the warrantless placement of the tracking device, or b) the vehicle involved has any commercial purpose. The argument it barely makes still doesn’t address the fact there’s no current exception for warrantless deployment of GPS tracking devices.

The “border exception” the government claims exists actually doesn’t. The law says nothing about border freebies and vehicles crossing the border are, more likely than not, going to travel outside of the area where the border exception is applicable. This is basically the DHS claiming because it can search your vehicle without a warrant at a border crossing, it can search it anywhere else in the US provided your vehicle crossed the US border at some point in the recent past. If the government can somehow convince the court its border protection mandates allow for inland searches, the Fourth Amendment will be null and void.

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Comments on “DHS Investigators Argue The Border Warrant Exception Covers Searches Performed Miles From The Border”

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66 Comments
That Anonymous Coward (profile) says:

How about we get back our rights & stop letting them keep chipping away at them??

OOOOH they found sugar!
In some states the quickie test still says thats drugs & they steal your car.

This doesn’t make us more secure, this makes us subject to the whims of idiots with badges… they hired what 2 serial killers so far? Perhaps they aren’t really good at picking the right people to stop the ‘bad guys’.

David says:

Re: Re:

OOOOH they found sugar!
In some states the quickie test still says thats drugs & they steal your car.

Uh, civil asset forfeiture does not require an actual charge. They don’t need a quickie test. They can just say that it looked like cocaine to them, flush the sugar down the toilet and confiscate the car.

If you invest a few thousands in court fees, they might give it back to you a year later, assuming that they didn’t crash it in the meantime.

That Anonymous Coward (profile) says:

Re: Re: Re:

They decided, with nothing more than a tingling in their tiny brains, that these people were hauling drugs.
They tracked the vehicle for days… they raid and find sugar.
Rather than admit that requiring evidence beyond a tingle should be the right way, they claim it was a test run to get drugs into the country so they need the right to track all the tingles & who needs courts to say yes or no.

Here is the ‘unintended’ outcome they are pushing for, serial killer see’s a pretty face, slaps a tracker on the car, uses it to stalk & then murder the target. They claim it is an isolated incident & not a reason to reconsider the easily abused system.

Can’t tell the good guys from the bad guys without a program but the good guys have no program for keeping the bad guys out. Perhaps instead of expanding their powers of abuse, we should make them focus on getting actual good guys who believe the law of the land is the law of the land & we don’t need special carve out of rights to let them abuse citizens.

Gary (profile) says:

Re: If DHS is not following the constitution

The basis for US law is “Common Law:”

https://en.wikipedia.org/wiki/Common_law

Which is laws interpreted by judges using precedent. If precedent supports this then that is how things roll. You can’t just declare something constitutional. It could be fought all the way to the top, but that seems unlikely.

Anonymous Coward says:

Re: Re: If DHS is not following the constitution

bullshit

I have heard over and over how we are a nation of laws …
and then everything one sees in real life indicates this is simply not the case.

You seem confused about how the courts operate, precedence is not defined by your nebulous “common law”. The use of the term common law could argue for anything – just claim it is common law. I’m surprised trump has not tried this.

nasch (profile) says:

Re: Re: If DHS is not following the constitution

If precedent supports this then that is how things roll.

A court can always go against precedent and decide that something is in fact unconstitutional. For example, if something like Korematsu came up again, it would almost certainly be ruled unconstitutional despite the Korematsu decision saying otherwise.

Anonymous Coward says:

Re: not following Constitution

… neither Congress, Presidents, nor Supreme Court follow the Constitution — and all 3 Federal Branches have severely violated it for generations.

So what’s you plan for getting them to go away ??

DHS excesses merely reflect the outlook of the top management in the Federal Government.

Christenson says:

Re: Re: Re:2 not following Constitution

Everyone, stop thinking “common law” is always a dog-whistle from a SovCit…

Common Law, as used here is the Karma (that which has gone before) in the courts.

If, IF you can get the courts to decide it, of course the constitution is supposed to take precedence…but that is a very expensive proposition with lots of friction. Gideon versus Wainwright took YEARS to get to the supreme court and establish a right to effective counsel. Same for Miranda, all the other famous cases.

Anonymous Coward says:

Re: Re: Re:3 not following Constitution

I’m curious, since you seem to think you have knowledge in the field, has any court room in the US ever heard an argument that included the phrase “common Law” and then used that in an effort to persuade the court to see things from that pov?

If so, have any of these instances resulted in the court siding with the “common Law” argument?

If not, then wtf are you going about?

Christenson says:

Re: Re: Re:4 not following Constitution

I’m saying that, IN THIS CONTEXT, the citation to Common law was not some SovCit trying to play with everyone. It was used in its correct technical sense.

As to Common law itself, have a look at the second paragraph page 11 of the court opinion in the following Techdirt post:
https://www.techdirt.com/articles/20180916/18265640652/after-fielding-third-case-point-court-finally-decides-curtilage-violating-knock-talks-are-clearly-unconstitutional.shtml

First, the opinion as a whole cites precedent after precedent…that which other courts have decided before.

Then:
For centuries, the common law has protected the curtilage of the house. See Oliver, 466 US at 180. And the supreme court long has held that the curtilage is “considered part of the home itself for fourth amendment purposes”…

Oh my…this opinion is full of the common law! And it is not at all unique.

Anonymous Coward says:

Re: Re: Re:5 not following Constitution

It is interesting that your “curtilage” has been violated on a routine basis.

There was a case where a farmer did not want leo cameras on his property but was told to shove it because they were investigating his neighbor .. something, something, drugs is all they have to say and bingo, no impediment to breaking numerous laws – no mention of common anything.

Christenson says:

Re: Re: Re:8 not following Constitution

Projecting… as in assuming things from your own experience (someone got in my curtilage)… that are not in evidence. I simply cited a document for the proposition that “common law” has a technical meaning and is used that way legally.

I’m just a fly on the wall here. You are still short a citation for your farmer story.

Anonymous Coward says:

Re: Re: Re:9 not following Constitution

“Projecting… as in assuming things from your own experience”

That is not what others are referring to when they use the term, perhaps it would benefit your communications if you were to use the same language.

The following is from wikipedia but there is plenty of material to chose from if you so desire.

Psychological projection is a theory in psychology in which the human ego defends itself against unconscious impulses or qualities (both positive and negative) by denying their existence in themselves while attributing them to others
https://en.wikipedia.org/wiki/Psychological_projection

stderric (profile) says:

Re: Re: Re:3 not following Constitution

Everyone, stop thinking "common law" is always a dog-whistle from a SovCit…

Maybe not a dog whistle, but it’s a bit of a Pavlovian bell for the Flag button 🙂

(Honestly, I was mousing towards the flag before I’d consciously registered that that first mention of "common law" was from Gary… hell, before I’d even consciously registered the words "common law".)

Gary (profile) says:

Re: Re: Re:4 not following Constitution

(Honestly, I was mousing towards the flag before I’d consciously registered that that first mention of "common law" was from Gary… hell, before I’d even consciously registered the words "common law".)

Thanks for stopping and considering that the SovCit definition of Common Law is the actual opposite of the textbook definition mate!

Anonymous Coward says:

Re: Re: Re:2 not following Constitution

The U.S. Constitution is legally superior to "common law" & precedent.

By text perhaps, but SCOTUS looks to these things (as they were in the 1700s) to determine how to "interpret" the Constitution. Laws contrary to its plain meaning have been upheld on this basis.

Anonymous Anonymous Coward (profile) says:

Who's on the case...top men. What top men? TOP men!

"A top Homeland Security Investigations official has told a federal court that it remains the agency’s policy…"

If a top man can, with a straight face, tell a federal judge that their agencies policy has greater authority than the Constitution, then they need new top men. Of course this is just the government looking to establish a president, similar to the FBI dragging its feet in the Apple cellphone case.

So the serious question becomes how do we go about taking down agencies like DHS and FBI for failure to respect the Constitution…in their policies? Who will do it is another question to consider, DOJ? Ha!

A special prosecutor or five need to be appointed, but who’s gonna do that? We need an executive to be elected who is not interested in re-election and has the people in mind. Now who’s gonna do that?

That One Guy (profile) says:

Re: Who's on the case...top men. What top men? TOP men!

If a top man can, with a straight face, tell a federal judge that their agencies policy has greater authority than the Constitution, then they need new top men.

On the contrary that is exactly the sort of person they want on the payroll, as it helps them get the precedent they want. They want people who can assert with a straight face that internal rules trump the constitution as it then forces the judge on the defense, who must then point out that no, they don’t get to just make their own rules like that and expect them to be legal just because they say so.

With the number of spineless judges that crumble the second the magic words ‘national security’ are mentioned there’s decent odds that such an assertion will be granted as valid.

David says:

Re: Re: Who's on the case...top men. What top men? TOP men!

They want people who can assert with a straight face that internal rules trump the constitution as it then forces the judge on the defense, who must then point out that no, they don’t get to just make their own rules like that and expect them to be legal just because they say so.

"Qualified immunity" very much means that the "good guys" get to make their own rules like that and expect them to be legal just because they say so. "I thought I should be allowed to do that" is quite legally valid authorization for a government official.

Punkin Head says:

Re: Re: Re: Who's on the case...top men. What top men? TOP men!

I thought that just being a celebrity allowed me to simply grab women by the genitals, why do I need immunity for something that I am allowed to do?

Why am I not supposed to take money from foreign governments in return for removing sanctions? I am immune right? I can murder people on mainstreet – right? If we have nukews, why can’t we use them?

No Collusion

Covfefe

That One Guy (profile) says:

'It's a test run... to see if we can get away with it later.'

The "bust" carried out in Southern California turned up plenty of legal frozen pastries and four bags of a cocaine-like substances known as regular-ass sugar. The FBI posited this was a trial run for actual drugs and chose to take its collected evidence to court, where it was promptly thrown out by the presiding judge.

Just… let that sink in. Unconstitutional search, and they try to salvage it by claiming they were engaged in a test run. That would be like someone breaking into a store, getting caught, and then arguing that they were just doing a ‘test run’ and should be let off the hook because look, they didn’t take anything before they were caught!

Anonymous Coward says:

Re: 'It's a test run... to see if we can get away with it later.'

I think the idea is that the “criminals” were doing a trial run with sugar, to see if they get caught or if they need to fine-tune their process.

So … it’s more like arresting someone for shopping at a store because they are obviously just there as a trial run for robbing it later.

That One Guy (profile) says:

Re: Re: 'It's a test run... to see if we can get away with it later.'

That would make a bit more sense, but just raise the point of ‘if you have sufficient evidence that they will be running drugs, then you have sufficient evidence to get a gorram warrant and catch them in the act. If you don’t have enough for a warrant, then you don’t have enough for a search.’

That One Guy (profile) says:

Re: How is it not null and void?

I can’t remember offhand if it’s 2/3rd’s of the US population or 3/4th’s, but yes, 100 miles from the border covers the overwhelming majority of the US population.

As to why it’s allowed, spineless judges who fold as soon as someone mentions the magical words ‘national security’ and/or claims that if the people wearing badges aren’t allowed to do anything they want the Bad People will win.

The Wanderer (profile) says:

Re: How is it not null and void?

Where the “border exception” is read into the Fourth Amendment is in the word “reasonable”, and in precedent on determining what searches are and are not reasonable (and therefore do not or do require a warrant).

My understanding is that long-established precedent has determined that searching luggage at border crossings is reasonable, and so is searching vehicles (for stowaways and/or people being smuggled, et cetera) at those same border crossings;

and then that so is searching those same things near a border, but not actually at a crossing, because someone could have crossed without passing through a checkpoint;

and then that so is searching houses, et cetera, near a border, because someone who crossed withough passing through a checkpoint could have hidden there;

and then that anywhere someone could have travelled to from the border in a short amount of time (a few hours) is near enough to the border for all those previous things to still be reasonable.

And of course in the modern day, you can travel a hundred miles in less than two hours by car, so of course anything within a hundred miles is close enough to the border to fall within that last determination.

Get off my cyber-lawn! (profile) says:

Just arguing it wrong

the government simply needs to point out that they aren’t tracking the vehicle. They are tracking the GPS device, which is government property and therefore entirely theirs to actually track. It isn’t their fault the careless vehicle operator failed to inspect/remove the device once it was secretly attached to the automobile!

Anonymous Coward says:

Re: Just arguing it wrong

Reminds me of the guy who took his vehicle to a car shop only to be told the car had a tracker attached.

The government claims it can do this to vehicles parked in a private driveway.

So the government wants their expensive device back but they abandoned it on private property and it should now belong to the guy being tracked. But, of course the law only applies to the little people.

btr1701 (profile) says:

Re: Just arguing it wrong

I’ve often wondered about the legalities involved with people who discover the tracking devices.

If you find a tracking device on your car, do you have to leave it there? If you take it off and just leave it in your garage, can you be charged with obstruction for not letting the government track your every movement?

What if you find it, leave it on the car, but start using a different car so the government can’t track your movement? Still obstruction?

That One Guy (profile) says:

Re: Re: Just arguing it wrong

If nothing else it could make for an interesting court case.

They claim the tracker is government property and the suspect/recipient of a fishing expedition therefore has no right to tamper with it.

The owner of the vehicle shoots back by pointing out that it was attached to their property, and as such they have a right to decide whether not to allow it to remain attached.

I suspect the case would mostly be decided by how dazzled the judge in question was by shiny things, in that case a badge.

Of course that’s only the legal side of things, given how the FBI acted the last time this sort of thing came up I imagine anyone who made a ‘nuisance’ of themself by daring to tinker with/remove such a device would quickly find their life getting all sorts of ‘interesting’.

ECA (profile) says:

LOTS of comments...

but, the only persons responsible for the truck are the ones IN THE TRUCK..
Or did they wait to see who they sold the Sugar to..
ALSO, import Sugar has a Very high tax…$1 per pound..its a restricted market.

WHY was DHS created? its not doing its job, chasing Drug traffic. THATS another dept.
How many Agencies have been placed under DHS..over 40, if you didnt know…MOST of the federal gov.
Part of this, also happens to be part of another THING going on…WITH TRAINS..they want to be able to Frisk every child that travels..

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